Wednesday 2 December 2015

A one-day conference

The Adelphi Hotel, Liverpool

9.30am – 3.30pm

About the Conference

Carolyn Jones, Director of the Institute of Employment Rights, welcomed people to the event noting it had been a rollercoaster of a year on employment law. The big issue of course was the Trade Union Bill. Carolyn noted that IER have two new publications and a video which expose the three main aims of the Bill – to liquidate public sector trade unions, to reduce the political voice of organised labour and to attack the industrial strength of trade unions by placing yet more restrictions on the right to organise and to strike. Cad also noted other changes on the labour law landscape, which speakers would discuss throughout the day.

The first to speak was Paul Scholey, of Morrish Solicitors LLP who followed up on his well received talk on social media employment law cases he delivered last year with ‘ Social media reloaded.’ The ECHR rights conferred by the Human Rights Act appear to have done little to protect the freedom of expression of Facebook users. Privacy – of significance where posts are confined to small closed groups – also seems to count for little. In contrast employers’ concerns about reputational damage, and corporate social media policies, are taken very seriously indeed by the courts and tribunals. Remarkably, even relatively innocuous comments have led to disciplinary hearings, and to dismissal. Swift apologies, and the removal of the offending posts, have, however, tended to persuade tribunals that dismissal falls outside of the band of reasonable responses, but nevertheless, such cases have seen 25%-50% reductions in awards to reflect the culpability of the worker, indicating that workplace gossip and social media do not mix. Paul noted that ACAS have published guidance on handling disciplinary matters relating to social media.

Dominique Lauterberg, employment and EU law specialist at the Manchester Law School, Manchester Metropolitan University, gave an account of the 2014 Collective Redundancies and TUPE amendment Regulations, and some recent associated cases, including the disappointing USDAW/ ‘Woolworths’ CJEU decision on the definition of ‘establishment’ in the Collective Redundancies Directive, which determined that the closure of the chain of shops fell outside the regulations, each shop being held to be a separate establishment. A recent CJEU case clarifies what can be seen of as an ‘economic entity which retains its identity’ in a business transfer, and definitions of the ‘organised group’ carrying out activities that are ‘fundamentally the same’ required for a ‘service provision change’ have been clarified in a number of domestic decisions.

Hannah Reed, Senior Employment Rights Officer at the TUC, addressed the Conference on the threats posed to the labour movement by the Trade Union Bill, emphasising that the proposed balloting thresholds, restrictions on facilities time, new picketing ‘trips and hurdles’, removal of ‘check off’ arrangements in the public sector, new powers and duties to be foisted on the Certification Officer, and permitting employers to use agency workers as strike breakers, are all prima facie breaches of international law. Hannah accused the government of seeking to starve the labour movement of funds with the ‘check off’ provisions, and the proposal that members be compelled to submit written ‘opt in’ requests to permit the deduction of contributions to political funds.

Barrister Victoria Webb, of Old Square Chambers, cast much needed light on a new aspect of the complex Parental Leave Regulations – shared parental leave (‘SPL’). Victoria mentioned the information on SPL published by ACAS and BIS and recommended the guidance available at an online resource site specialising in shared leave.

Essentially the new arrangements will permit working couples to split as much as 50 weeks of maternity leave. However, as there is no more money being added to the parental leave system, it seems that SPL will not be likely to encourage many more couples to take much more than the 6 weeks of earnings related statutory maternity pay available to new mothers/ main adopters. Victoria gave us a series of examples of various couples in a variety of employment relations and their entitlement to SPL, and discussed employer ‘enhancement’ of the £139.53 per week statutory entitlement, and concerns about possible discrimination claims as more men take advantage of the possibilities presented by realistic levels of what is effectively paternity pay.

Jo Seery a specialist employment law solicitor at Thompsons offered her views on ACAS Early Conciliation (EC). She ran through the motives behind the introduction of tribunal fees, the devastating impact on the numbers of employment claims, the difficulty of obtaining fees remission and the mythical nature of the ‘vexatious’ claims that were so often referred to by disingenuous cheerleaders for the fees back in 2010-2013. Jo revealed that EC, despite the best intentions of ACAS, has proved to be of most use for employers seeking the cheap settlement of disputes. The parties do not have to engage in conciliation, and with the threat of tribunal having now been largely lifted by the fees system, employers are now disinclined to engage in serious negotiations until it has become evident that the potential claimant is prepared to take the case on to tribunal. This has served to undermine attempts to engage in Early Conciliation and appears to be the reason for the low numbers of EC settlements, the very low averages of EC settlements, and the very large number of claims that are not settled during EC and fail to reach tribunal. EC has become an over complex system geared towards generating EC numbers and EC certificates.

Elizabeth Stephenson, an employment solicitor at Patterson and Brewer, was the final speaker, delivering a wide ranging review of recent individual employment cases. Here is a brief summary of some of the cases she mentioned

Following the 2013 amendment to the protected disclosure provisions of ERA 1996, requiring a subjective test that a disclosure is in the ‘public interest’ before the ‘whistle blowing’ protections are engaged, a recent case, Chesterton Global Ltd v Nurmohamed EAT [2015], due to go to the Court of Appeal in October 2016, suggests that an allegation that an estate agency’s manipulation of the company accounts which had adversely affected the bonuses of more than 100 managers amounted to a public interest disclosure. Following the Chesterton Case the EAT in Underwood v Wincanton plc, EAT [2015] ruled that the ‘whistle blowing’ provisions protected Mr Underwood who had, along with 3 other Wincanton lorry drivers, complained that the company was withholding the opportunity to work overtime from drivers deemed overly fussy about the condition of the vehicles they were given to drive. The safety of LGV vehicles was certainly a matter of public interest.

In Essop v Home Office (UK Border Agency), CA [2015] the Court of Appeal ruled that there was no need for a claimant to show why, in a case where indirect discrimination was claimed, a practice, criteria or provision disadvantaged a group sharing protected characteristics, if, as in Essop, the claimant had produced a report which would be likely to show why it was so.

CHEZ Razpredelenie Bulgaria AD v Komisia za zashita ot diskriminatsias CJEU, [2015] concerned the indirect discrimination suffered by a non-Roma shopkeeper living in a predominately Roma area where an electricity company, in a bid to deter customers from interfering with the devices, had installed electricity meters 6 metres above the ground rather than the usual 1.7 metres. Although not part of the disadvantaged group the court ruled that the shopkeeper had been discriminated against.

In Ramphal v Department for Transport, EAT [2015] the EAT examined the limitations of the role of HR in disciplinary procedures. In this case HR had changed the report of an investigating officer, removing the mitigating factors, and a finding that the employee had not deliberately overspent on petrol and car hire, replacing the recommendation of a final warning with a finding of gross misconduct and a recommendation that he be dismissed summarily. In finding that there had not been an unfair dismissal the tribunal had failed to pay sufficient attention to the improper influence of the HR department.

Two disability discrimination cases, Kaltoft v Municipality of Billund, CJEU [2014] and Metroline Ltd v Stoute,EAT²⁰¹⁵: In the latter it was held that, depending on the circumstances – whether it impacted sufficiently on daily life – obesity can amount to a disability. In the former the claimant controlled type II diabetes by not drinking sugary drinks, and was held not to have a disability. In Bolton St Catherine’s Academy v O’Brien, EAT [2015] the dismissal of a head of department after an absence of nearly 2 years caused by reason of disability, which the appellant argued was a proportionate means of achieving a legitimate aim, the facts were held to speak for themselves – the school did not have to present evidence of the impact of the absence.

In MBNA v Jones EAT [2015], a company social evening at Chester Races went badly wrong when following a serious of minor altercations between Jones and a colleague, Jones punched the colleague in the face. The colleague subsequently sent Jones a number of threatening text messages. Following a disciplinary hearing Jones was sacked. His colleague received a final written warning. Jones claimed unfair dismissal and the tribunal found in his favour. The EAT, however, found the dismissal to be fair, finding that while both were guilty of misconduct, the two cases were markedly different, and confirming that disparity of treatment does not necessarily make a dismissal unfair.

Federacion de Servicos Privados del Sindicato Comisiones Oberas v Tyco Integrated Security CJEU [2015]: following this decision certain workers, like many professional carers or break down mechanics, who do not work from a fixed or habitual place of work, can now count the journey out to the first customer, and home from the last, as working time.

Edwards v Enrich Ltd [2015]: A shop steward and a health and safety rep were given only six hours rest between shifts after fulfilling their union duties the evening before, and this case suggests that these activities might count towards working time under the 1998 regulations.

Speakers

Social media: reloaded
Paul Scholey. Morrish Solicitors LLP.

TUPE and collective issues.
Dominique Lauterburg. School of Law Manchester Metropolitan University.

Early conciliation and fees in practice
Jo Seery Thompsons Solicitors.

Some common questions on shared parental leave
Victoria Webb. Old Square Chambers.

Case-law update – opportunities and challenges
Elizabeth Stephenson Pattinson and Brewer.

The psychological impact of austerity at work.
Laura McGrathPsychologists against austerity.

Protecting workers’ rights to organise together
Hannah Reed TUC